I am not a lawyer, but this is what I have learned about criminal defense. According to the standard Theory of Defense, there is a list of six genres from which to choose in any particular case, shown below.
1. It never happened (mistake, setup)
2. It happened, but I didn’t do it (mistaken id, alibi,
3. It happened, I did it, but it wasn’t a crime (self-defense,
accident, elements lacking)
4. It happened, I did it, it was a crime, but it wasn’t
this crime (lesser offense)
5. It happened, I did it, it was the crime charged, but
I’m not responsible (insanity)
6. It happened, I did it, it was the crime charged, I’m
responsible, so what? (nullification)
Defense Genre Number Five. It has been reported that Army Pfc. Bradley Manning, pursuant to a request by his civilian defense lawyer, David Coombs, will have a pre-trial hearing to answer two questions: (1) What he mentally ill during the time that he is alleged to have committed a crime? (2) Is he mentally competent to stand trial for the alleged crimes?
That mental health hearing will determine is Pfc. Manning can choose “insanity” as the genre of his Theory of Defense. Sometimes this genre is called “temporary insanity”, where the word “sanity” is defined in societal terms of social deviance. In the case of Pfc. Manning, it might be more appropriate to call it “temporary sanity”, where the word “sanity” is defined in existential terms beyond arbitrary societal conditioning.
Separately, Pfc. Manning will probably be judged to be mentally competent to stand trial, regardless of his being on an anti-depressant drug regimen and suffering torturous treatment and confinement conditions for six or more months.
Defense Genre Number Six. If the insanity genre is rejected at the mental health hearing of Pfc. Manning, and he is judged mentally competent to stand trial, then the chosen genre might be “nullification”, i.e., “So what?” Secretary of Defense Robert Gates is reported to have said that the release of the documents by WikiLeaks was “not a threat to national defense”, or words to that effect. The military chain-of-command will not likely be influenced by this extra-judicial comment of Mr. Gates.
Defense Genre Number One. If the insanity defense and the nullification defense are not viable, then Pfc. Manning might choose the “mistaken identity or setup” genre. The prosecutor’s evidence and list of witnesses will not be presented to the defense lawyer until shorty before the trial by court martial. Reportedly, Adrian Lamo said that the U.S. government considers him to be a “witness” and not an “informer” in the case of Pfc. Manning. It appears that the alleged Manning/Lamo instant message chat logs are hearsay evidence. Pursuant to the Uniform Code of Military Justice (UCMJ), hearsay evidence is not admissible except for certain specified exceptions, and none of the exceptions applies to the case of Pfc. Manning. The one exception that might be argued by the prosecutor is likely to fail because their is no legally relevant way that Adrian Lamo can positively identify Army Pfc. Bradley E. Manning as the person he was communicating with at any time, including alleged Twitter tweets, email messages and/or instant message (AIM) chats that allegedly are evidenced by chat-log text documents. Reported, Mr. Lamo asked Pfc. Manning in the chat logs: “What is your MOS (Military Occupational Specialty)?”, and Pfc. Manning. Many persons, including his family and friend, knew his MOS. All evidence publicly reported so far comes from Adrian Lamo, a reportedly unreliable witness whose public statements allegedly impeach his veracity on this matter. And all of the reported evidence from Adrian Lamo is circumstantial — there is no direct, prima facie evidence that indubitably identifies Pfc. Manning. There is no known videotape recording of Pfc. Manning’s fingers typing on the keyboard of a computer while chatting on AIM with Mr. Lamo. In short, it is mistaken identity, or possible a setup of Pfc. Manning.
Nevertheless, the jury of “peers” of Pfc. Manning (five jurors in a General Court Martial) will be military servicemembers. And in civilian as well as military criminal trials, purely circumstantial evidence can bring a conviction.
Plea Deal Offers
Reportedly, Pfc. Manning is facing 50+ years in prison if convicted of all charges and specifications on his original charge sheet. Reportedly, the prosecutor has offered Pfc. Manning a plea bargain of more lenient prison sentence if he will “cooperate” and incriminate Julian Assange of WiliLeaks as a co-conspirator to commit espionage against the U.S. Reportedly, Pfc. Manning is not cooperating with the prosecutor on any plea bargain.
It appears that Pfc. Manning may be facing a choice between (1) up to 54 years in prison if he pleads not guilty and is convicted; and (2) accepting a plea deal, say five years maximum in prison, and incriminating Mr. Assange so that he can be convicted also.
After the mental-health hearing of Pfc. Manning, there will be another pre-trial hearing, similar to a grand-jury hearing in civilian defense cases, of Pfc. Manning, to determine whether or not there is enough evidence supporting the charged crimes to justify going to trial by court-martial.
Many people feel that the UCMJ is not fair in general. Many people feel that Pfc. Manning already has been deprived of legal due process as a result of his extended solitary confinement and Prevention of Injury watch at the Quantico Marine Base confinement facility.
The whole world is watching.